Karnataka High Court
Dasa @ Dasaiah vs State By on 21 November, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:47491
CRL.RP No. 320 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 320 OF 2020
BETWEEN:
1. DASA @ DASAIAH
S/O JANGI OBAIAH,
AGE 27 YEARS, COOLIE WORK,
R/O CHINNUR THIPPAIANAHATTI VILLAGE,
HAIKAL POST, TURUVANUR HOBLI,
CHITRADURGA TALUK - 577 501
...PETITIONER
(BY SRI. R SHASHIDHARA, ADVOCATE)
AND:
1. STATE BY TURUVANUR POLICE STATION,
CHITRADURGA TALUK
AND DISTRICT - 577 501,
REPRESENTED BY S.P.P.,
Digitally
signed by HIGH COURT BUILDING,
MALATESH BENGALURU - 560 001.
KC
Location: ...RESPONDENT
HIGH (BY SRI.VINAY MAHADEVAIAH, HCGP)
COURT OF
KARNATAKA
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT DATED 23.01.2020 PASSED BY
THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHITRADURGA IN CRL.A.NO.55/2019 CONFIRMING THE
JUDGMENT DATED 11.06.2019 PASSED BY THE C/c III
ADDITIONAL CIVIL JUDGE AND J.M.F.C., CHITRADURGA IN
C.C.NO.1448/2016.
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CRL.RP No. 320 of 2020
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri R. Shashidhara, learned counsel for the revision petitioner and Sri Vinay Mahadevaiah, learned High Court Government Pleader for the respondent/State.
2. Accused who suffered an order of conviction in C.C.No.1448/2016, on the file of III Additional Civil Judge and JMFC., Chitradurga, confirmed in Crl.A.No.55/2019, on the file of 23rd January, 2020 is the revision petitioner.
3. Facts in the nutshell for disposal of the revision petition are as under:
A complaint came to be lodged with Turuvanuru police, alleging that on 18.05.2016 at about 7.30 p.m., accused/revision petitioner, being the driver of Tractor engine bearing No.PY3029D385201, Chasis bearing No.1PY5045TFA11133 and Trailer bearing No.KA-16-T-2973 has driven the Tractor in a rash and negligent manner from Haikal village towards Kotehatti village and while so driving, lost the control of the Tractor and Trailer, near the land of -3- NC: 2024:KHC:47491 CRL.RP No. 320 of 2020 Toranagatte Sathyanarayana Reddy of Halikal village and caused the accident.
4. In the said accident, Tractor and Trailer turtle and the inmates of Trailer namely, Ravikumar, Thippeswamy @ Swamy, sustained grievous injuries and died at the spot.
5. P.W.2 who is an independent witness who was moving on a two wheeler behind the Tractor and Trailer having witnessed the incident, noticed that both Ravikumar, Thippeswamy @ Swamy had died, intimated the complainant - Shanthakumar. Shanthakumar immediately rushed to the spot and lodged the complaint with the police.
6. Police after registering the case conducted thorough investigation, filed the charge sheet against the accused for the offence punishable under Section 279, 304-A IPC and 3 r/w Section 181, 134-B r/w Section 187, 39 r/w Section 192 of Indian Motor Vehicles Act.
7. Presence of the accused was secured and charges were framed. Accused pleaded not guilty, therefore, trial was held.
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8. In order to prove the case of the prosecution, ten witnesses were examined as P.Ws.1 to 10 and 12 documents were marked as Exs.P.1 to P.12.
9. In the cross-examination of eye witness, on behalf of the accused, it is suggested that there are number of persons by name 'Dasa' in the village and accused was not the driver of the Tractor and Trailer in question.
10. P.W.2 has specifically denied that the accused was not the driver of the Tractor and Trailer and pleaded ignorance that there are number of persons by name 'Dasa' in the village.
11. Other suggestions made by the prosecution witnesses did not yield any positive materials so as to disbelieve the case of the prosecution.
12. Thereafter accused statement as is contemplated under Section 313 Cr.P.C., was recorded. Accused has denied all the incriminatory materials put to him and did not deny the fact that he was not the driver of the Tractor and Trailer in question as on the date of the incident.
13. To question No.17, wherein the learned Trial Magistrate had enquired the accused whether he has got any -5- NC: 2024:KHC:47491 CRL.RP No. 320 of 2020 explanation or his version with regard to the incident. Accused has stated that he has got nothing to offer about the incident.
14. On conclusion of recording of evidence, learned Trial Magistrate heard the parties and on cumulative consideration of oral and documentary evidence on record convicted the accused for the aforesaid offences and sentenced as under:
Accused is found guilty for the offences punishable U/s 279, 304-A of IPC, Section 134-B R/w Section 187, Sec. 3 R/W 181, Sec. 39 R/W 192 of IMV Act.
Acting U/s 255(2) of Cr.P.C. the accused is hereby convicted for the offences punishable U/s 279, 304-A of IPC, Sec.134-B R/w Sec.187. Sec.3 R/w 181, Sec.39 R/w 192 of IMV Act.
The accused is convicted for the offence punishable u/s 279 of IPC and he is sentenced to pay a fine of Rs.1000/- and in default, he shall undergo SI for a period of 15 days.
The accused is convicted for the offence punishable u/s 304-A of IPC and he is sentenced to undergo SI for a period of 6 months and to pay a fine of Rs.5000/- and in default, he shall undergo SI for a period of one month.
Further, the accused is convicted for the offence punishable u/s 3 R/w Sec. 181 of IMV Act and he is -6- NC: 2024:KHC:47491 CRL.RP No. 320 of 2020 sentenced to pay a fine of Rs.500/- and in default, he shall undergo SI for a period of 15 days.
Further, the accused is convicted for the offence punishable u/s 134-B R/w Sec. 187 of IMV Act and he is sentenced to pay a fine of Rs.1000/- and in default, he shall undergo SI for a period of 15 days.
Further, the accused is convicted for the offence punishable u/s 39 R/w Sec.192 of IMV Act and he is sentenced to pay a fine of Rs.2000/- and in default, he shall undergo SI for a period of one month.
Bail bond stands cancelled.
The copy of the judgment shall be given to accused on free of cost."
15. Being aggrieved by the same, accused preferred an appeal before the District Court in Crl.A.No.55/2019. Learned Judge in the First Appellate Court re-appreciated the material evidence on record and dismissed the appeal of the accused, inter alia holding in paragraph Nos.19 to 24, which reads as under:
"19) P.W.7 is said to be the wife of deceased Thippeswamy who heard about the accident had been to the spot, saw the spot and learnt that accused was cause root for the alleged accident and identified the tractor.-7-
NC: 2024:KHC:47491 CRL.RP No. 320 of 2020
20) That the learned counsel for the defence has not elicited anything worth from the mouth of P.W.7 in the cross- examination part except denials and stray sentences. That merely because P.W.7 has deposed to the fact that on the alleged day accused, deceased Thippeswamy, deceased Ravikumar and Prahlada had been to coolie to fill the mud into the tractor would not suffice to say that the alleged accident did not took place due to the rash and negligent driving of the accused. Therefore, the trial court has rightly placed reliance on the evidence of P.W.7 also.
21) P.W.8 who is said to be the Police Sub Inspector has spoken to regarding registration of the case and inquest mahazar was drawn. That the learned counsel for the defence has not elicited anything worth from the mouth of P.W.8 in the cross-examination part except denials and stray sentences from the mouth of PW.8. Therefore the trial court has rightly placed reliance on the evidence of P.W.8 also. It has been corroborate with the evidence of PWs.1 to 7.
22) P.W.9 is said to be Police Sub Inspector who has deposed to about the investigation done in to the case and the learned counsel for the defence has not elicited anything worth from the mouth of P.W.9 in the cross- examination part, except denials. That the evidence of P.W.9 has been corroborated with the evidence of PWs.1 to 8.
23) P.W.10 is said to be the owner of tractor has partly turned hostile and partly supported the case of prosecution. PW.10 has deposed to the fact that PW.10 gave tractor on the alleged day to one Prahalda and thereafter said Prahalda gave tractor to the Dasanna (accused) to -8- NC: 2024:KHC:47491 CRL.RP No. 320 of 2020 drove the vehicle on the alleged day. That the learned counsel for the defence has not elicited anything worth from the mouth of P.W.10 in the cross-examination part, except denials and in fact when the cross examined by the learned counsel for the defence it has been deposed that till afternoon Prahalda drove the vehicle and thereafter accused drove the vehicle. Therefore that fact itself suffice to say that accused was a driver at the time of accident. Therefore the trial court has rightly placed reliance on the evidence of P.W.10.
24) Therefore the prosecution has proved that accused was a driver of the tractor and trailer on that day who drove the vehicle rash and negligently, lost his control over the tractor and trailer resulted in toppling of the tractor and caused the accident. So also resulted in death of Ravikumar and Thippeswamy. It could also be gathered that accused drove unregistered tractor engine in the public place. That while recording statement under section 313 of Cr.P.C., before the trial court accused has not explained anything except total denial of the case of prosecution."
16. Being further aggrieved by the same, accused is before this court.
17. Sri Shashidhara learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that both the Courts have grossly erred in not properly appreciating the material evidence on record, -9- NC: 2024:KHC:47491 CRL.RP No. 320 of 2020 especially the answers elicited in the cross-examination of eye witness and wrongly convicted the accused, resulted in miscarriage of justice and sought for allowing the revision petition.
18. Alternatively, learned counsel for the revision petitioner contended that in the event this Court upholding the order of conviction, by enhancing the fine amount, imprisonment period may be set aside, as the entire family is depending on the accused as the accused is the sole bread earner in the family.
19. Per contra, learned High Court Government Pleader opposes the revision grounds in toto including the alternate submission canvassed on behalf of the accused.
20. Having heard the parties in detail, this court perused the material on record, meticulously.
21. On such perusal of the material on record following points would arise for consideration:
1) Whether the accused/revision petitioner has made out a case that the impugned judgments are suffering from legal infirmity and perversity and thus calls for interference?
2) Whether the sentence is excessive?
3) What order?
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22. In the case on hand, accused being the driver of the Tractor and Trailer in question has been established by the prosecution by placing both oral and documentary evidence on record.
23. Admittedly, P.W.2 is an eye witness to the incident who was proceedings in the same direction of the Tractor and Trailer unit on his motorcycle. On witnessing the Tractor and Trailer unit turtle, he went to the spot and noticed that accused after the accident, fleeing away from the spot.
24. He has also noticed that inmates of the Trailer Unit namely, Ravikumar, Thippeswamy @ Swamy have sustained grievous injuries and they died at the spot. Immediately, P.W.2 intimated the incident to Shanthakumar who came to the spot and lodged the complaint to the Police.
25. P.W.2 being the independent witness did not nurture any previous enmity or animosity as against the accused who falsely implicate in the incident.
26. Suggestions made to P.W.2 in the cross- examination, there are number of persons by name 'Dasa' in Halikal village, is not accepted by P.W.2, but has pleaded ignorance. Further, he has specifically answered in the cross-
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NC: 2024:KHC:47491 CRL.RP No. 320 of 2020 examination that it is the accused who was driving the Tractor and Trailer Unit and he has seen him as he was fleeing away from the spot.
27. These aspects of the matter have been rightly appreciated by the learned Trial Magistrate while passing an order of conviction.
28. Absolutely, no explanation is forthcoming on behalf of the accused either at the time of recording the plea or at the time of answering the questions put to him, inviting his attention to the incriminatory circumstances found in the prosecution case.
29. If the revision petitioner was not the driver of the Tractor and Trailer unit, he had an ample opportunity to disclose the same at the time of recording the plea or at the time of recording the accused statement.
30. It is settled principles of law and requires no emphasis that recording of the accused statement for dual purpose. Firstly, it would be the incumbent mandatory duty of the learned Trial Magistrate to put the questions to accused calling upon his explanation to the incriminatory circumstances.
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31. Secondly, in a matter of this nature to face his version of the incident on record, either by orally explaining or by filing the written submission as is contemplated under Section 313 (4) Cr.P.C.
32. If the accused deliberately fails to utilize such opportunity, consequences in law has to be followed as is held in the case of Ravi Kapur vs. State of Rajasthan reported in (2012) 9 SCC 284, wherein at paragraph 39, it is held us under.
"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."
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NC: 2024:KHC:47491 CRL.RP No. 320 of 2020 Therefore, the learned Trial Magistrate following the consequences of the non explanation by the accused and the injured being died on the spot and accused being the driver of the Tractor and Trailer Unit, the conviction order recorded by the learned Trial Magistrate is just and proper which has been rightly appreciated by the learned Judge in the First Appellate Court in the impugned judgment as referred to supra.
33. Having regard to the limited revisional jurisdiction, this Court does not find any grounds whatsoever to interfere with the well reasoned order of the learned Trial Magistrate, confirmed by the First Appellate Court, convicting the accused for the aforesaid offences.
34. Admittedly, accused did not possess driving licence to drive the Tractor and Trailer as well. Accordingly, point No.1 is answered in the Negative.
35. Regarding Point No.2: Learned Trial Magistrate has granted only six months imprisonment for the offence punishable under Section 304-A IPC.
36. In the incident, two valuable lives have been lost because of the negligent driving of the accused. State for the reasons best known to it, did not challenge the inadequacy of
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NC: 2024:KHC:47491 CRL.RP No. 320 of 2020 the sentence. In regard to appropriated sentence to be passed, this Court gainfully places reliance on the decision of Honble Apex Court in the case of State of Punjab vs. Saurabh Bakshi reported in (2015)5 SCC 182 wherein, Their Lordships in paragraph 14 and 15 have held as under:
14. In this context, we may refer with profit to the decision in Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Sections 304-A, 337, 279 IPC by reducing the sentence of imprisonment already undergone, that is, 15 days. The Court referred to the decision in Dalbir Singh v. State of Haryana [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and reproduced two paragraphs which we feel extremely necessary for reproduction :
(Balwinder Singh case [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] , SCC pp.
186-87, para 12) "12. ... '1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling
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NC: 2024:KHC:47491 CRL.RP No. 320 of 2020 them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.
***
13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must
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NC: 2024:KHC:47491 CRL.RP No. 320 of 2020 always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles.' (Dalbir Singh case [Dalbir Singh v. State of Haryana,(2000) 5 SCC 82:2004 SCC (Cri) 1208],SCC pp. 84-85 & 87, paras 1 & 13)"
15. In B. Nagabhushanam v. State of Karnataka [(2008) 5 SCC 730 : (2008) 3 SCC (Cri) 61] the appellant was directed to undergo simple imprisonment for six months for the offence punishable under Section 304-A IPC. The two-Judge Bench referred to Dalbir Singh [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and declined to interfere with the quantum of sentence. Be it stated, in the said case a passage from Rattan Singh v. State of Punjab [(1979) 4 SCC 719 :
1980 SCC (Cri) 17] was quoted : (B. Nagabhushanam case [(2008) 5 SCC 730 : (2008) 3 SCC (Cri) 61] , SCC p. 735, para 16) "16. ... '5. Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. The State, we hope, will attach a course for better driving
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NC: 2024:KHC:47491 CRL.RP No. 320 of 2020 together with a livelier sense of responsibility, when the punishment is for driving offences. Maybe, the State may consider, in case of men with poor families, occasional parole and reformatory courses on appropriate application, without the rigour of the old rules which are subject to Government discretion.' (Rattan Singh case [(1979) 4 SCC 719 : 1980 SCC (Cri) 17] , SCC pp. 720-21, para 5)"
37. Taking note of factual aspects of the matter and principles of law enunciated in the above case, this Court is of the considered opinion that sentence ordered by the learned Trial Magistrate, confirmed by the First Appellate Court is just and proper. Accordingly, point No.2 is answered in the negative.
38. Regarding point No.3: In view of findings on point Nos.1 and 2, this Court pass the following:
ORDER
(i) Revision petition is meritless and hereby dismissed.
(ii) Time is granted for the accused/revision petitioner to surrender before the learned Trial
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NC: 2024:KHC:47491 CRL.RP No. 320 of 2020 Magistrate for serving the remaining sentence till 30th December, 2024.
Sd/-
(V SRISHANANDA) JUDGE MR List No.: 1 Sl No.: 71